142 S.E. 725 | S.C. | 1928
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *454 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *455 April 6, 1928. The opinion of the Court was delivered by The State charged Harry Petit with murder in the killing of Seward Padgett. The defendant pleaded not guilty, and affirmed that he killed in self-defense. There have been three trials of the case in the Court of General Sessions for Colleton County. The result of the first two were mistrials. In the third trial, Hon. H.F. Rice, Circuit Judge, presiding, Petit was found guilty of manslaughter, and was sentenced to serve from three to six years. He has asked this Court to review his trial, and to reverse the judgment therein.
There is much conflict in the testimony. Certain outstanding facts, however, appear. Petit, about 35 years of age at the time of the homicide, had married, some years before, a niece of Mrs. Alice Padgett, wife of Dr. J.B. Padgett. At the time of the marriage, and for many years prior thereto, the niece resided in the home of these relatives. At the time of the homicide, Petit and his wife and daughter, Aline, 11 years of age, were living gratis, or by renting, in a small house of Mrs. Padgett, situate about 20 *463 steps from her own dwelling house. Between the two houses was the chicken yard of Mrs. Padgett. Petit had no regular occupation, but sometimes helped in Mrs. Padgett's store. Mrs. Petit was engaged in school teaching. With Dr. and Mrs. Padgett resided their son, Seward, the deceased, 19 years old. The two families seemed to be intimately friendly. Petit was given to excessive drinking of intoxicants at times, and Seward was not free from fault along that line.
On Sunday, March 2, 1924, the deceased and the defendant took a buggy ride, visited several places, and both of them partook of a concoction, with Jamaica ginger as the basis. They returned home in the night; each going to his respective place of abode. The mother of the deceased testified he was not drunk upon his arrival at home.
Previously, there had been quarrelling at Petit's house, due, as he frankly admitted, to the antipathy of Mrs. Petit to the husband's habits with regard to intoxicating drinks. In some of the times little Aline stayed at the Padgett home.
On the night of the homicide, after Petit's return from the ride, Mrs. Petit and Aline having already retired, there occurred, to put the best light on it, some differences between the defendant and his wife. The defendant says it came about because he insisted upon his little daughter getting up from her bed and making a fire, that he might warm, at which his wife protested.
From this time on there is considerable variance in the evidence. The theory of the State was, and it endeavored to so show by the evidence, that the defendant was quarreling with his wife; that there was serious probability of physical injury to the latter by the defendant; that the Padgetts heard the noise; that Mrs. Padgett called Aline to come to her home and spend the night, whereupon the defendant, with cursing, said that the child should not go; that Mrs. Petit was crying; that the defendant requested Mrs. Padgett to come to his home; that defendant and his wife, after a *464 struggle at the door, went from the house to the chicken yard of Mrs. Padgett. In the meantime, Aline had gone into the Padgett home and had a conversation with her great aunt, the subject of which does not appear. Thereafter Mrs. Padgett asked her son, Seward, to go to the Petit home and quiet the difficulty, since, because she was only clad in her night garments, and the night was cold, she could not well go; that the deceased hurriedly put on a few clothes and left his house, going through the back door, and entered the chicken yard, where Petit and his wife were. In a very little while Mrs. Petit, dressed only in her night clothes, went to the Padgett home. Petit was heard to say, presumably to the deceased, "I will cut your damn heart out." Shortly thereafter the deceased returned to his house, entering by the front door, and was discovered to be cut and bleeding. It developed that he had been stabbed near the heart, and as a result of the wound he died a few hours later. Mrs. Petit and her little girl did not return to their home that night. Early the next morning the defendant left his home, and was arrested on a public highway by the Sheriff. The State had no actual eyewitness to the affray. It depended mainly upon what Mrs. Padgett could see and what she and her husband heard from their home, together with a little circumstantial evidence and admissions made by the defendant. Neither Mrs. Petit nor Aline were placed on the witness stand.
The only eyewitness to the homicide was the defendant, and his statement of the affair was, briefly, as follows: That he was renting the house in which he lived; that at the urging of the deceased he took the buggy ride; and deceased furnished the intoxicants; that there were no differences between them on the ride; that they returned to their homes that night and parted on good terms; that he and his wife quarreled, because his wife did not wish Aline to make the fire, as he desired; that his wife started over to Mrs. Padgett's, and he did not wish her to go; that he did not attempt *465 to beat his wife or daughter, and did not curse them; that Mrs. Padgett called to him, and told him to leave her place, and never put his foot on it again; that he ordered his child not to obey the call of Mrs. Padgett for her to go to the Padgett home, and that he requested Mrs. Padgett, in a pleasant manner, to come to his home; that the little girl went anyway, and his wife started to go, whereupon he caught her by the sleeve to bring her back into the house; that about that time the deceased got there, and asked the defendant, "What in the hell, I was doing," and defendant replied, "None of your damn business," and deceased told him, "You turn Ethel loose"; that he told deceased he was not hurting her, and that she was going back into the house with him, and for deceased to go on back, and attend to his own business; that the deceased then jerked him off the steps; that his wife told the deceased to go on back home, and he again told deceased to go home; that at the time he was standing in the door with one hand on his wife's sleeve and the other on the door; that he did not threaten to cut out the heart of the deceased; that the deceased knocked him down two or three times, and, about the third time, he got his knife out, and attempted to cut the deceased on his arm; that the deceased was larger than he; that he had no intention of killing the deceased, and the knife he used was a very small pocket knife; that the deceased left, and the defendant did not know of his critical condition, and went on to bed; that he left his home early the next morning because of the order given by Mrs. Padgett the previous night; that he was going to see his relatives, and from there he intended to go to Walterboro to surrender, when the Sheriff overtook him, and he was placed under arrest.
Of the fifteen exceptions made by the appellant, three, the first, fourteenth, and fifteenth, were abandoned. Four of the exceptions, particularly referred to later, relate to either the admission or rejection of testimony. Our general observations touching all these will be made together, and now. *466
We feel sure that one of the main reasons for much of the misunderstanding as to when evidence should be allowed, and when it ought to be refused, is due to failure to properly distinguish between the legal terms, "relevancy" and "competency," so often used in the law of evidence, and, too generally but erroneously, supposed to be exactly synonymous. Many efforts have been made by Courts, Judges, and law writers to define the words so as to differentiate them correctly. In all the definitions we have read of "relevancy," we have been impressed much with that given by the New York Supreme Court:
"The meaning of the word relevant, as applied to testimony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it. It comes from the French relever, which means to assist." Platner v. Platner,
As to the other word "competency," or rather, "competent evidence," Black's Law Dictionary gives approval to this definition from Mr. Greenleaf:
"That which the very nature of the thing to be proven requires, as the production of a writing when its contents are the subject of inquiry."
In the "Preliminary Definitions" on the subject of Evidence, in Corpus Juris, there will be found a part of one sentence that expresses very clearly a thought we now have in mind, namely:
"* * * It is clear that evidence may be logically relevant and yet inadmissible because not competent, that is, because not the character of proof which the law permits in the particular case." 22 C.J., 65.
Irrelevant evidence is never, properly, admissible in a cause; competent evidence is always admissible; relevant evidence may, or may not, be admissible, depending upon its competency. *467
Taking together the approved definitions of "relevancy" and "competency" as they are to be applied in the introduction of evidence in the trial of a cause, a fair and brief statement of a rule to keep in mind, seems to us, to be this: Any evidence that assists in getting at thetruth of the issue is relevant, unless, because of some legalrule, it is incompetent.
Under our system of jurisprudence, in the trial of criminal cases in the Courts of General Sessions, the Judges know in advance but little, if anything, of all the issues in a cause. The indictment is usually short and in general terms. The plea of the defendant in the first instance, upon arraignment, is that only of "not guilty." The indictment and the plea make the issue or issues — more often in the plural. While the defendant is generally informed as to the line of the testimony against him, upon numerous occasions he may yet be surprised at what some witness testifies. The situation of the State is even one of greater disadvantage, so far as to information on the whole case. While the prosecution may have been forced to disclose its testimony, or some of it, in a corner's inquisition, a magistrate's preliminary hearing, or on application for bail, the defendant can never be required to disclose in advance his defense — not even in the main trial itself. So it often occurs that even attorneys in a criminal case are not fully advised as to all the issues that may arise therein, or as to the nature and character of the evidence to be presented by his adversary. Necessarily, then, a trial Judge is constantly called upon to decide hastily as to the relevancy and competency of proffered testimony. It is safe to aver that in nearly all important criminal trials of any great length irrelevant and incompetent evidence is received — due to the zeal of earnest lawyers and the lack of knowledge of the rules of evidence by witnesses. It is altogether reasonable, therefore, to believe that the conditions mentioned have *468 greatly influenced the making and maintaining of two principles by this Court, to wit:
(1) The admission of testimony in a cause is large within the discretion of the trial Judge.
(2) Unless the unsuccessful party can show that the admitted testimony was wrongfully accepted, or the reject testimony was improperly refused, and that the error wasprejudicial to his cause, there will be no reversal of the judgment.
Turning, then, to the consideration of the exceptions spoken of, we will dispose of the second and third together. The first of these complains of error in permitting Dr. Padgett and his wife to testify as to the intimate relations existing between the respective families of the deceased and the defendant.
The other contends that it was improper to allow Mrs. Padgett to tell of her calling little Aline to her home and the reason therefor; namely, that it "was a common thing for her to do whenever they (Petit and his wife) got in a fuss.
As Mr. Chief Justice Simpson said, in Blakely Copelandv. Frazier,
The testimony as to the friendly relations between the two families assisted in getting at the truth of one of the issues in the cause — the right of the deceased to go into the defendant's dwelling house, as claimed by the latter, or in the chicken yard, right at the house, as claimed by the State, at a late hour in the night, and his purpose in so going. If the defendant could have shown that the deceased and his family were on bad terms with defendant, testimony of that nature in his behalf would have been clearly admissible. Why not the converse? *469
The former friendly or strained relationships of parties to lawsuits, including that of the close relatives of the parties, are very often admissible in evidence. See State v.Senn,
Again, the defendant himself stated in his testimony that Dr. Padgett and his wife were "apparently" good friends of his; that he and deceased never had a difference; and that prior to the difficulty Seward "had the right of" coming "over to defendant's house." Defendant also testified that he requested Mrs. Padgett to come to his home. She could not go, but sent her son instead.
It is earnestly insisted, however, that the statement of Mrs. Padgett was highly prejudicial to the defendant, as it informed the jury of prior domestic troubles between defendant and his wife, and created the impression in the minds of the jurors that the defendant was accustomed to abusing his family. We cannot agree with the argument advanced. If Mrs. Padgett's use of the word "fuss" caused the jury to think the defendant was guilty of assaults or abuses of his wife, then the defendant's use of the word would have to be explained in the same way. And the defendant, several times in his examination, admitted that on the night of the difficulty he and his wife were "fussing," and during this time he requested Mrs. Padgett to come to his house. He also admitted that his little girl went frequently to the Padgett home.
It has been held in this State that evidence otherwise inadmissible may be admitted as preliminary to a relevant inquiry.Merchants' Planters' National Bank v. CliftonMfg. Co.,
We have been pointed to no rule which declares the testimony incompetent, and certainly it was relevant. *470
Mr. P.M. Givens, witness for the defendant, testified that he saw the deceased and the defendant in the buggy at 3 o'clock on the afternoon preceding the homicide; that they had Jamaica ginger, and he partook of some of the concoction, "just a little." Defendant's counsel asked him, "where did they say they got the whisky from?" One of assistant counsel for the State objected. There was argument. Defendant's attorney insisted the evidence was competent, as it led up to the killing eight hours afterward, and showed the conduct of the parties. It is now said by appellant that the witness would have testified that deceased admitted he furnished the Jamacia ginger, and accordingly this would have been confirmation of the defendant's statement thereabout. Another of the State's assistant counsel, so the record shows, admitted in his argument that, if the statement "was made either by the deceased or the defendant," it would be competent — still he objected. The Court ruled that "where they got the liquor from" had nothing to do with their conduct, and that he could not see where the evidence was relevant.
To our minds, it would have been all right to have let the witness answer the question. But there was no prejudicial error in refusing to do so. When two men are on a drinking spree in the afternoon, and eight hours later one of them is killed by the other, it is material perhaps to inquire as to their drinking, but it matters little which of the two furnished the intoxicant. The question of who provided the Jamacia ginger was not an issue of any importance in the case. The issue, if any, along that line was, "Did either the deceased or the defendant drink Jamaica ginger?" There was plenty of evidence to convince the jury that both of them did.
In reply, the State was allowed to show by the testimony of the mother of the deceased that he was not under the influence of liquor on the night of the tragedy. The defendant made objection to this testimony *471 on the grounds that it was not in reply, and was only the opinion of the witness.
We think the testimony was in reply. The defendant testified that the deceased and himself drank about two pints of the Jamaica mixture. Other witnesses for defendant swore to drinking by deceased and of his conduct throughout the afternoon and into the night, which tended to show he was under the influence of intoxicants.
A witness, in a position to know, may give his opinion as to the sobriety or intoxication of a person at a given time, if the evidence is otherwise competent. 22 C.J., 599. In this instance, it was competent for the State to show that the deceased was not under the influence of whisky just prior to his going to the defendant's house.
The remaining exceptions pertain to the charge of the presiding Judge.
The Court, in stating the punishment for the crime of manslaughter, used this language:
"* * * Or you may return a verdict of guilty of manslaughter, and in that event it would be the duty of this Court to sentence him for not less than 2 years or more than 30. Under the recent Act of the Legislature, would have to be — run something like this, not less than 2 years, nor more than 4 years; or not less than 4 years or more than 8 years. In other words, within the limits which the presiding Judge thinks he ought to be sentenced, the minimum in that case, for instance, from 2 to 4 years, the maximum sentence he would serve would be 4 years, the minimum would be 2 years. If he should behave himself, and the officers thought he should get a good report, he would only serve one-half of the maximum imposed on him, that is to say, after he served that length of time, and he would be released and he would still be considered as serving the sentence and be at home; or you may find a verdict of not guilty."
By the sixth exception, the appellant asserts that the charge given was prejudicially erroneous, for the reason that *472 it was not in the province of the jury to consider the method by which the Judge would be guided in imposing sentence; and that, by the use of the language mentioned, the Court indicated a belief that the defendant was guilty of manslaughter.
We fail to see the prejudice to his client that counsel thinks there was. It was the privilege, really the duty, of the Judge to inform the jury as to the respective punishments provided by law for the crimes included in the indictment. Information of this kind may be very helpful to a jury in arriving at a proper verdict. The punishment meted out by the law for the various crimes helps, too, to impress upon the minds of the jurors the difference in the crimes. The very last clause of the instruction complained of was to the effect that the jury might acquit the defendant. If the first part of the instruction conveyed any idea that the trial Judge considered the defendant guilty of manslaughter, his last words could be readily construed as an indication that he thought him entirely innocent.
The seventh exception imputes error in the charge as to the law of manslaughter. The instruction was as follows:
"Now, what is a sufficient legal provocation? Now words under the law, it does not make any difference what that matters, for no words how harshly one person may speak to another will constitute a sufficient legal provocation. Well, then, words that are not accompanied by some effort or attempt to do harm or injury to the other person, but it must be some act of one person who is killed — which is killed; and in which a man of ordinary prudence and courage would create a higher degree of passion, such as spit in a man's face, pull his ears, or knock him off the street, or some smart indignity, might be some different ways, another could act which is calculated to create a higher degree of fighting in a man, and the law says, if that is done, and while *473 acting under the influence of the passion, and he strikes and kills the other, then it cannot be murder; it is manslaughter."
It is claimed that the illustrations used to define "legal provocation" constitute acts of aggression which would give one the right to act in self-defense. There is cited as authority for this exception the holding in State v. Tapp,
Most of the illustrations given by the Judge, or ones similar thereto, have been used time after time in our Courts in explaining the crime of manslaughter, and they were proper to be given in this cause, for they could be used without any indication as to the Court's impression of the facts, since no evidence in the case pointed to instances of the kind named by the Judge.
The words in the quoted charge, especially complained of, have been italicized by us — "knock him off the street." It is is insisted that, if one is knocked off the street by another, the former has a right to apprehend danger of serious bodily harm, and would be justified in striking in self-defense, and that the resultant death of the aggressor would not be either murder or manslaughter, but a "justifiable" killing under the law ("excusable" should be the term rather than "justifiable").
We think the trial Judge, evidently, had in mind one of the illustrations often used in former days in charges on manslaughter, namely, that the pushing, brushing, or jostling, of one on the street or in a public place in a rude, angry, violent, or insulting manner was a sufficient legal provocation to reduce what might be murder to manslaughter. Perhaps, technically, the words pointed out should not have been used. We cannot see, however, that they were harmful in their use in the case at bar. One knocked off the street by his adversary *474 may, in slaying on that account, be guilty of manslaughter, or he may be guilty of murder, or he may be innocent of any crime. The act of knocking one off the street does not excuse the person so assailed for the taking of the life of his assailant, unless all the elements of self-defense are present at the time. And, if malice existed on the part of the slayer, and as a result of that malice the killing occurred, the knocking off the street would not even reduce the offense to manslaughter.
Under the well-known rule that the whole charge of the trial Judge must be considered in order to determine if there was prejudicial error in any part thereof, we must hold there was no prejudicial error as complained of. An examination of the full charge in the case causes us to believe that the jury could not have been misled to the disadvantage of the defendant, as to the instructions imputed to have been erroneous.
The defendant presented fifteen requests to charge to the Court. After the general charge, these were taken up. The Judge thought he had covered the most of them, and, to save unnecessary repetition, asked defendant's attorneys "to point out what you want charged." Thereupon one of the attorneys from time to time indicated by numbers those requests which he desired given. He called for No. 2 of his requests, which stated, it seems properly, the law as to the presumption of innocence which surrounds an accused person throughout his entire trial. When his attention was called to this request, the presiding Judge remarked, "Well, I have not said a thing about that. I simply told the jury the burden is on the State to prove the guilt beyond a reasonable doubt." The requested instruction, in its exact verbiage, was then read by the Judge. It commenced with the words, "I further charge you." After reading the instruction, the Court said:
"Well, I have not said a thing about that. I simply told the jury the burden is on the State to prove the guilt beyond a reasonable doubt. Now, which other one?" *475
The contention of the appellant, as stated in his eighth exception, is that the remarks of the Court preceding and following the giving of the request amounted to an improper modification of the request, and that the "presumption of innocence" doctrine was not, therefore, correctly stated. We are unable to agree with this position, for the record shows that the request was charged. The Judge, in his remarks, both before and after giving the request, seemed to be rather apologetic to the counsel or the jury, perhaps to both, because he had overlooked the legal proposition, contained in the request, in his general charge.
In order to understand Exceptions 9 and 10, and to keep this opinion from being entirely too long, the reporter will incorporate in his report that part of the charge of the presiding Judge, with his remarks and those of defendant's counsel, included between folios 467 and 483 of the printed record, and the two exceptions mentioned.
A careful reading of the instructions given by the Court are, in our opinion, complete answer to the allegations of error contained in the exceptions.
The appellant also asks reversal because of the granting of the second, fourth, and fifth requests to charge on the part of the State. These, and the remarks of the Judge as to them, will also be reported.
As to the second request, appellant's Exception No. 11 is contradictory within itself. It imputes error on the ground that the charge was on the facts. Later, it says in effect there was no testimony which made it applicable. We think the granted request was proper, for it contained a correct principle of law, and it bore upon the facts in the case — not the facts from the defendant's viewpoint, but from the theory of the State. There was some evidence to show that the difficulty occurred in the chicken yard, which both the deceased and the defendant had the right to occupy and use. *476
The case of the State v. Bundy,
Regarding the fifth request of the State, as charged, appellant urges that it was inapplicable, in that there was no testimony to the effect that the defendant was attempting to assault his wife with a knife or other deadly weapon; and that the request presumed and intimated such an assault. Soon after giving this instruction, the Court again repeated to the jury the information that he was not "intimating anything about it." The often announced statements of the Judge to the effect that he had nothing to do with the facts of the case, and that they were for the jury, were abundantly sufficient, we are confident, to cure any possible intimation otherwise.
And we think the request under consideration was applicable. It must be remembered that the State depended, to some extent, on circumstantial evidence to establish its case. It had no actual eyewitness to the admitted killing of the deceased by the defendant. The defendant was under the influence of a terrible concoction of Jamaica ginger — a fact admitted by him. There was a quarrel between husband and wife — also admitted by the defendant. Blood was found in or about the chicken yard. The deceased went to defendant's home to quiet whatever disorderly conduct was there. The wife ran from her home in the dead hour of the night, scantily clad. The deceased, soon thereafter, was wounded by the appellant with a knife — admitted by the defendant. Who can say that the defendant did not draw the knife, or attempt to draw, or threaten to draw, it upon his wife? We do not have to accuse him *477 of any assault, or threatened assault, of that nature. It is not our duty to dispute the accusation, if it was made. But these were some of the circumstances, and they were for the jury to consider.
Close reading of the record convinces us that the defendant had a fair and impartial trial. Perhaps minor errors crept in, as they often do in cases similar to the one at bar. We have been unable to find any error that we think was prejudicial. Therefore, it is the judgment of this Court that all the exceptions be overruled, and that the judgment of the Court of General Sessions of Colleton County be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE WATTS and MR. JUSTICE STABLER concur.
Concurrence Opinion
I concur in the judgment of affirmance in this case, but wish to add the following observations:
I think that it is unfortunate ever to use the adjective "competent" as descriptive of evidence. A witness is competent to testify, for the reason that his qualifications as a witness are perfect. Evidence is admissible, for the reason that it is relevant, if presented in proper form, and is not in conflict with a rule of law.
I do not agree to the proposition that in any case the admissibility of evidence is a matter within the discretion of the trial Judge. I agree that, when technically the trial Judge had committed error in his ruling upon the admissibility of evidence, it may be held by this Court that the error was not sufficiently prejudicial to warrant a reversal; butthe admissibility of evidence is a matter of law, in the decision of which he has no discretion.
Dissenting Opinion
I concur in the opinion of Mr. Justice Blease in this case, except as to the disposition of the thirteenth exception. As to this exception, I am not in accord with the views expressed by Mr. Justice *478 Blease, and most respectfully dissent, for the reasons I shall briefly state.
Under this exception, the appellant imputes error to his Honor, the presiding Judge, in charging the respondent's fifth request to charge, as follows:
"I charge you that, where a husband is about to feloniously assault his wife with a knife or other deadly weapon, any citizen has a right to interfere by using such force as may be necessary to prevent the commission of the felony, even to the extent of taking the life of the husband attempting to commit the felony, provided that neither the wife nor such citizen is at fault in bringing on the difficulty."
The error imputed to his Honor under this exception is as follows:
"In that his Honor, the Circuit Judge, erred in charging the State's fifth request for charge, the error being that said charge did not apply to the facts in the case, in that there was no testimony whatever to the effect that the defendant was attempting to assault his wife with a knife or a deadly weapon; that said charge was a charge upon the facts, and intimated to the jury that a supposed assault by the defendant upon his wife with a deadly instrument, for which there was no testimony, had been proven in the case, and should be considered."
While it is admitted that on the occasion in question there was loud talking at defendant's home, and that the defendant and his wife were fussing, because the defendant had come home intoxicated, a careful study of the record of the case, as far as I have been able to ascertain, fails to reveal any testimony tending to show that the defendant was about to feloniously assault his wife with a knife, or other deadly weapon, at the time in question, or on any other occasion. Respondent, contending that there was testimony which warranted the charge in question under this exception, calls attention to the testimony appearing in the transcript at folio 153, as follows: *479
Mr. Moorer, examining Dr. J.B. Padgett, father of the deceased:
"Q. Were you awake or asleep when Seward got there that night? A. I was awake.
"Q. What time of night did he come in? A. Between 10 and 11 o'clock.
"Q. Did you hear him talking to any one? A. I heard him talking to my wife.
"Q. Did he come into your room? A. No, sir.
"Q. Now, after he had gone to bed, was there any disturbance over in your neighborhood? A. Yes, sir.
"Q. Whereabouts? A. Loud talking over at the next house, at the Petit house where they were living.
"Q. Well, sir; how was the talking? Just tell what kind of talking it was? A. Loud talking.
"Q. Well, sir; I am talking loud. Was any other disturbance between them, other than loud talking? A. Like fussing.
"Q. Like fussing? A. Yes, sir.
"Q. Did you hear anything else outside of loud talking? Did you hear any cursing? A. I did afterwards; yes, sir.
"The Court: Talking loud?
"Witness: Yes, sir.
"Mr. Moorer: What else did you hear outside of the cursing? A. Cursing.
"Q. And what else beside cursing? A. Cut your damn heart out.
"Q. Before we come to the difficulty? A. Yes, sir."
Continuing, the witness, Dr. Padgett, testified:
"Q. Was the side door open at that time? A. Yes. sir; it was.
"Q. Well, when Seward got out there, what was said, and what did you say then? A. I heard Harry say, `I will cut your damn heart out.' *480
"Q. How soon after Harry said that before any one came to your house? A. Mrs. Petit. Of course, Aline came first, and then Mrs. Petit.
"Q. And, after you heard Harry say he would cut his damn heart out, how soon after before Mrs. Petit got there? A. I could not tell you exactly, come right in.
"Q. How did she come? A. Through the chicken yard, and through the back way.
"Q. How soon after she got there, before your son got there? A. I do not know, sir."
Mrs. Alice Padgett, wife of Dr. Padgett, testified on this point to the same effect as her husband, Dr. Padgett. Mrs. Padgett on this point, being examined by a counsel for the State, testified as follows:
"Q. What sort of talk was going on between them at that time? A. Very loud talking.
"Q. Was it pleasant talking? A. No, sir.
"Q. State what sort of talk was it? A. They were quarreling.
"Q. They were quarreling? A. Yes, sir.
"Q. After your son went out the back way, and went through there, and relate what you heard then, and what happened? A. I heard Petit tell him, cut his damn heart out.
"Q. That he would cut his damn heart out? A. Yes, sir.
"Q. Well, how soon after you heard that before any one came over to your house? A. Mrs. Petit was there immediately."
This testimony, as I view it, shows clearly that the alleged threat on the part of the defendant was against the deceased, when he got to the defendant, and was not against the defendant's wife, and affords no ground of support for the charge in question to the jury.
Respondent further calls attention to the fact that the defendant on cross-examination, when questioned as to certain of his testimony at a former trial, admitted that he must *481 have stated at the former trial that he did not remember what time it was he got the knife out of his pocket. There is nothing in this, as I see it, which tends to show that the defendant was about to feloniously assault his wife with a knife or other deadly weapon; neither do I think such an inference can reasonably be drawn from the surrounding circumstances. That husband and wife were fussing, it is true, but it appears that the wife was taking care of her side of the "situation" all right, and, as I read the record of the case, as it appears in the transcript, I fail to find anything which tends to show that the defendant was about to feloniously assault his wife with a knife or other deadly weapon, or any circumstance from which such an inference could reasonably be drawn. I, therefore, conclude that the charge in question under this exception was not responsive to the facts in the case, and was prejudicial to the appellant.
The appellant further contends under this exception that in charging this request, at the instance of the State, his Honor, the presiding Judge, intimated to the jury that a supposed assault by the defendant upon his wife with a deadly weapon had been proven; that is, that the defendant at the time in question was about to feloniously assault his wife with a knife or other deadly weapon had been proven. I know that such was foreign to his Honor's intention, for no one is more desirous to be fair than the Judge who presided at the trial of this case, but I am inclined to think the language susceptible of the meaning attributed by the appellant, and that it was very harmful to the appellant, especially since it was given at the conclusion of the charge, leaving the language and instruction contained in the State's request impressed on the minds of the jurors, and I think very likely affected their verdict.
Further, I do not agree with the view that the error in thus charging the jury was made harmless by the closing remarks of the presiding Judge. Immediately following *482 this charge, the fifth request of the State, above quoted, the following occurred:
"The Court: I charge you that. Now, I think, gentlemen, that is about all, unless something further the lawyers want me to charge.
"Mr. Jefferies: I have nothing further.
"Mr. Moorer: I think, your Honor, in stating back there, you might have charged upon the facts of the case.
"The Court: Now, gentlemen, in charging the requests to charge to you, I am not intimating whether this man was drunk or sober, that's for you to determine, and I have not got anything to do with that, or whether the man that was killed was drunk or sober, all of these questions are for you, and I am not intimating anything about it, and I do not think any one could infer that I have.
It will be seen from this that the explanation made by his Honor, the presiding Judge, had reference to his charge on drunkenness of the defendant, and that his Honor made no reference to or explanation of his charge "that where a husband is about to feloniously assault his wife with a knife or other deadly weapon. * * *" I, therefore, do not think that the charge complained of by the appellant, under this exception, was at all helped or explained by what followed thereafter. Evidently, counsel for the State entertained some apprehension as to the correctness of this charge, when he stated to his Honor. "I think, your Honor, in stating back there you might have charged upon the facts of the case." But when his Honor made an explanation he made no reference to, or explanation concerning, the charge in question, and only referred to the alleged drunkenness of the defendant.
This error which I think his Honor fell into was due, perhaps, to the fact that his charge to the jury was given at night, following a long and tedious trial, when his Honor must have felt heavily the long strain he had been under, to which he called attention at the beginning of his charge. *483
I think the appellant's thirteenth exception should be sustained and that the judgment of this Court should be that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.
